Silverthorne v. Summit Lumber Company

• Decision Date: 04 May 1915
• Citation: 176 S.W. 441,190 Mo.App. 716
• Parties: FRANCES H. SILVERTHORNE, Respondent, v. SUMMIT LUMBER COMPANY, Appellant
• Court: Missouri Court of Appeals

176 S.W. 441

190 Mo.App. 716

FRANCES H. SILVERTHORNE, Respondent, v. SUMMIT LUMBER COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

May 4, 1915

Argued and Submitted April 7, 1915.

Appeal from St. Louis City Circuit Court.--Hon. Rhodes E. Cave Judge.

AFFIRMED.

Judgment affirmed.

Judson Green & Henry for appellants.

(1) (a) If one sues upon a note which is payable to a third person alleging in the petition an indorsement thereof by the payee to petitioner, the said indorsement must be proven as alleged. Dunlap v. Kelly, 105 Mo.App. 1; Mayer v. Old, 51 Mo.App. 216; Dorn v. Parsons, 56 Mo 601; Covit v. Thorp, 30 Mo.App. 131, 133, 134; Discount Co. v. Becker, 138 Mo.App. 54; Wade v. Boone, 168 S.W. 360. (b) By alleging the indorsement to her plaintiff made that allegation material and could not afterwards be heard to say that it was mere surplusage. Dunlap v. Kelly, 105 Mo.App. 1. (c) The note sued upon was executed before the adoption of the new Negotiable Instruments Law, consequently its provisions do not apply. Merchants Nat'l Bank v. Birsh, 140 Mo.App. 246, 250. (2) There was a fatal variance between the pleadings and the theory upon which the court gave the case to the jury and allowed them to return a verdict. There was a total failure to prove one essential allegation of the petition. Perry v. Barrett, 18 Mo. 140; Bremen Bank v. Umrath, 42 Mo.App. 525; Dunker v. Schlafeldt, 49 Ill.App. 652; Sweetzer v. Claflin, 74 Tex. 667; Alabama Coal Mine Co. v. Brainard, 35 Ala. 476; Stroder v. Alexander, 9 Port. 441. A plaintiff cannot sue upon one contract and recover upon an entirely different and distinct contract. Clements v. Yates, 69 Mo. 623; Henry County v. Citizens Bank, 208 Mo. 209; Bremen Bank v. Umrath, 42 Mo.App. 525. (3) The trial court committed reversible error in giving plaintiff's instruction No. 1, because that instruction not only permits a recovery without proof of any indorsement by A. D. Silverthorne, but it also presents a false issue to the jury in reference to the payment of the note in cash, when no such issue is made by the pleadings, the answer of the defendant alleging merely that the note had been paid by its surrender and the acceptance of preferred stock of the company in lieu thereof, there being no issue made as to any cash payment of the note, except as $ 61.40 thereof, while the language of this instruction submits to the jury the issue of a cash payment when no such claim was made either in the pleadings or in the evidence. Whipple v. Peter Cooper Bldg. & Loan Ass'n, 55 Mo.App. 554; Wright v. Fonda, 44 Mo.App. 634; State ex rel. v. Sitlington, 51 Mo.App. 252; Whitlock v. Appleby, 49 Mo.App. 295. (4) The trial court committed reversible error in ruling out the letter of December 27, 1911, from Albert E. Silverthorne to George M. Silverthorne, respondent's agent, after respondent had expressly admitted that she had authorized George M. Silverthorne to write to the said A. E. Silverthorne about this alleged lost note and the interest thereon, and after respondent herself had offered and read in evidence a letter to George M. Silverthorne about the same matter, which was admitted to have been dictated by the same A. E. Silverthorne, although it was signed with the stamp of L. D. Reichert. (a) Notice to her duly authorized agent that a certificate of stock had been issued for this note was notice to her. Fowler v. Randall, 99 Mo.App. 407; Edwards v. Home Ins. Co., 100 Mo.App. 695. (b) Besides this evidence tended to impeach respondent and to disprove her claims about this alleged lost note, and tended to show that she actually knew about the issue of the preferred stock. It also tended to disprove, or at least to modify, certain admissions contained in the said letter to George M. Silverthorne which was offered by respondent; and it was admissible for this purpose also. The error of the court in excluding this vital evidence is presumed to have been prejudicial. Holmer v. Farris, 97 Mo.App. 305; Wibracht v. Arman, 89 Mo.App. 363.

Holland, Rutledge & Lashly for respondent.

(1) The trial court properly submitted the issues in its instruction number 1, and properly refused the offer of appellant's instruction number 1. (a) Where title is not claimed through endorsement, no endorsement is necessary to entitle the owner and holder of a note to recover in his own name and right. Boeka v. Mueller, 28 Mo. 180; Willard v. Moies, 30 Mo. 142; Lewis v. Bowen, 29 Mo. 202; Davis v. Carson, 69 Mo. 609; Bennett v. Pound, 28 Mo. 598; Harvey v. Brooke, 36 Mo. 493; Revised Statutes 1909, sec. 10021; Dawson v. Wombles, 123 Mo.App. 340; Little v. Bradley, 43 Fla. 402; Cassidy v. First Natl. Bank, 30 Mich. 86; Caldwell v. Meshew, 44 Ark. 564; Bedell v. Carll, 33 N.Y. 581; Hoyt v. Seeley, 18 Conn. 353; Tanner v. Bean, 4 B. & Cres. 312; Coumrine v. Coumrine, 14 Ind.App. 641; Lipscomb v. Talbert, 243 Mo. 1; Gwinney v. Phillips, 3 Durnford & East, 643. (b) A fair construction of plaintiff's petition shows her theory to be that the plaintiff was always the owner of the note in suit, did not acquire it by endorsement or delivery, but that if it was drawn to someone else, it was intended for her, and that she was the real party in interest and had been throughout the life of the note. In such a case the fact of endorsement is immaterial and the allegation of such fact merely descriptive and not essential. (c) Every action must be prosecuted in the name of the real party in interest, hence the endorsement by a payee of a note given to him as agent for plaintiff is unnecessary to enable plaintiff to sue, and allegation and proof is immaterial. Sec. 1729, R. S. 1909. (2) (a) There was no error committed in excluding the letters offered by appellant. They show upon their face that they allude to another note for the sum of $ 18,000, payable to "the estate of" Frances H. Silverthorne and their connection with the case at bar nowhere appears in the record for the very cogent reason that they have no connection with it. (b) There was no evidence whatever that George Silverthorne was the agent of plaintiff for the purpose of receiving notice; the plaintiff alone was questioned upon the subject and she said "he is my son, and always wanted to help me, but he is not my agent for this or any other business." (c) Suppose he was her agent for the purpose of collecting her note after default in 1911, and then heard for the first time of the existence of the stock in question, that fact would not alter or lessen the legal liability of defendant upon a note executed in 1904, or bind her as upon an agreement or assent to substitute stock for her note four years earlier. (d) The letters do not amplify or in any way explain the admissions contained in the letter of November 15, 1911, and conceding all that appellant contends for their contents and application would be but self-serving, and are inadmissible upon that ground. (3) The judgment was for the right party. The note given was for the plaintiff's money and was delivered to her; this is undisputed. She did not agree to exchange it for stock. This fact is unchallenged in the whole record; also the jury found it to be true. Substantial justice would not be served by reversing the judgment upon objections which at best are purely formal and highly technical. R. S. 1909, sec. 2082; Fitzgerald v. Barker, 96 Mo. 661; Feary v. Railroad, 162 Mo. 75, 109; Barkley v. Assn., 153 Mo. 300; Peterson v. Transit Co., 199 Mo. 331, 334; McKinstrey v. Transit Co., 108 Mo.App. 12.

REYNOLDS, P. J. Nortoni and Allen, JJ., concur.

OPINION

REYNOLDS, P. J.

The amended petition upon which this case was tried sets up as the cause of action that defendant made and executed its promissory note, dated on or about July 29, 1904, payable sixty days after demand, in the principal sum of $ 3361.40, bearing interest at the rate of seven per cent per annum from date; "that said note was made payable either to the plaintiff or to A. D. Silverthorne and indorsed and delivered by him to the plaintiff, and was delivered either to the plaintiff or the said A. D. Silverthorne for the plaintiff, and that the plaintiff does not know whether the said note was made payable to her, or to the said A. D. Silverthorne and indorsed by him, or whether the said note was delivered to her or to the said A. D. Silverthorne for her; but that one or the other of each of said respective alternates is true, but that plaintiff is ignorant of whether it be the one or the other. " Averring that plaintiff is the "owner and holder" of the note but that it has been accidentally lost or destroyed and that she had made due and diligent search therefor but that it cannot be found, wherefore it is not attached to her petition or filed therewith, plaintiff avers that she attaches as an exhibit to her petition and files therewith her affidavit as to the loss of the note. Averring that demand had been made of defendant by plaintiff for the payment of the note, the demand beginning on or about November 14, 1911, and continuing until the institution of this action, and that the whole amount is now due, payable and owing to plaintiff, and that interest had been paid on it up to October 27, 1911, but that no interest had been paid since that date, judgment is demanded for the note with interest thereon from and after October 27, 1911, and for costs.

Answering this petition defendant admits that on or about July 29 1904, it executed its promissory note for $ 3361.40, "payable to the order of A. D. Silverthorne, who is the husband of this plaintiff, sixty days after demand; but defendant denies that it ever made, executed or delivered any such note payable to the order of plaintiff Frances H. Silverthorne, and it denies that said note above...